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Further briefing sought in two challenges to North Carolina’s same-sex marriage ban

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District courts hearing two challenges to North Carolina’s same-sex marriage ban want the parties to file briefs addressing the impact of the Fourth Circuit Court of Appeals decision in Bostic v. Schaefer on those challenges.

The Fourth Circuit struck down Virginia’s ban in Bostic, and its decision will bind district courts in states that fall within that circuit.

North Carolina’s attorney general has said he will no longer defend the state’s ban, suggesting that it would be futile, given the Fourth Circuit ruling.

The parties have 14 days to file briefs discussing “the relevance and the effect of Bostic with respect to the challenged North Carolina laws, including, but not limited to, stating whether Bostic constitutes binding precedent on this court.”

The identical orders were issued in Fisher-Borne v. Smith and Gerber v. Cooper.

Thanks to Equality Case Files for these filings


  • 1. brandall  |  July 31, 2014 at 8:24 am

    The wonderful Lyle Denniston – Constitution Check: Would marriage for gays be a newly created right, or recognition of an old right?

    Lyle has a way of boiling down a complex issue to a few paragraphs. I wish this was required reading by the media, especially AP. I'm going to keep this link to use when I spot someone getting this issue FUBAR'd.

    "The specific arguments, on both sides, are by now entirely familiar; more than 70 lawsuits are unfolding across America on this issue, and not one of them has produced a new and novel argument. It remains only for judges to choose, because it is by now abundantly clear that it is in the nation’s courthouses, not in its legislative halls or in its political campaigns, that the answer will be given – a constitutional answer."

  • 2. MichaelGrabow  |  July 31, 2014 at 8:51 am

    That was great, thank you for posting.

  • 3. hopalongcassidy  |  July 31, 2014 at 10:20 am

    Maybe I'm a simpleton, but it seems to me that if marriage is not an enumerated right (or not even mentioned) in the Constitution it either extends to NObody or ANYbody. How could it possibly be otherwise?

  • 4. brandall  |  July 31, 2014 at 11:24 am

    Don't tell us, please send a note to Scalia.

  • 5. hopalongcassidy  |  July 31, 2014 at 12:01 pm

    Do you think it would be okay if I address it to
    Fat Tony the Turd

  • 6. brandall  |  July 31, 2014 at 12:11 pm

    Fat might be a little rude. But you can use the word turd. I checked and turd was first used before the 12th century. I wanted to make sure you were not using any words that came into existence in the 20th or 21st century since Scalia would not know those.

  • 7. hopalongcassidy  |  July 31, 2014 at 12:30 pm

    Okay, I guess I better not call him a mountebank or scalawag then.


  • 8. BobxT  |  July 31, 2014 at 1:06 pm

    Wouldn't the "newly created right" argument apply to DOMA just as well? Doesn't that mean that you can't really make this argument without ignoring the Supreme Court DOMA decision precedent?

  • 9. annajoy1  |  July 31, 2014 at 9:03 am

    Why the additional briefings? What does that mean?

  • 10. Japrisot  |  July 31, 2014 at 9:14 am

    If there are any named defendants who are willing to defend the law now that the AG has stepped aside, the court is simply giving them an opportunity to try to distinguish North Carolina's marriage ban(s) from Virginia's. This would be absolutely futile if anyone tried to do it.

  • 11. galen697  |  July 31, 2014 at 10:32 am

    Basically the court is asking the parties to update their briefs and arguments to discuss how the Bostic ruling impacts on the legal arguments they're trying to make, since that is now a binding precedent within the district.

  • 12. annajoy1  |  July 31, 2014 at 11:12 am

    I just hope that it doesn't change the court decision.Sent from my iPad

  • 13. sfbob  |  July 31, 2014 at 11:41 am

    The Fourth District Court of Appeals has already issued their ruling and that ruling was based on a case in Virginia. The North Carolina cases are separate from that and won't have any impact on the ruling already issued.

    As has been noted, North Carolina's marriage equality ban is substantially identical to Virginia's; if that one was overturned, unless a great many legal experts have overlooked some relatively obvious yet never before stated rebuttals to all of the previous rulings, North Carolina's ban is as dead as Virginia's.

  • 14. annajoy1  |  July 31, 2014 at 11:47 am

    Thanks. Good response.Sent from my iPad

  • 15. RobW303  |  July 31, 2014 at 12:15 pm

    As I understand it, North Carolina's ban is even more egregious than Virginia's in at least one respect: it even bans celebrations of same-sex unions, an aspect that the UCC is addressing in its suit against the state.

  • 16. MichaelGrabow  |  July 31, 2014 at 12:38 pm

  • 17. sfbob  |  July 31, 2014 at 1:37 pm

    I have understood this as well, though to be honest the wording of the amendment itself does not appear to suggest that. Is it possible there are other state statutes that have the effect of banning holy unions and other similar ceremonies which convey church recognition but not legal recognition? That would seem to be entirely unconstitutional all on its own.

    "Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts."

    What is certainly true is that the language of the amendment is such that it could be interpreted to prohibit any number of things which are not specifically stated. At the time the amendment was on the ballot it was noted that the phrase "domestic legal union" was itself undefined and that it might well require the expenditure of significant judicial resources to understand what it might mean, how it might apply and what the amendment's limitations could be.

    When Virginia's marriage amendment was passed, it was widely suggested that it could be interpreted so as to interfere with any number of otherwise legal contracts such as wells, trusts, advance medical directives and the like. Former governor (now under federal indictment by the way) Bob McDonnell was at the time of the amendment's passage the state's attorney general. His office released an opinion disputing the expansiveness of that interpretation but it's not entirely clear to me whether the scope of the amendment or of McDonnell's opinion was ever put to the test. In Michigan, the state courts interpreted that state's marriage equality ban quite expansively and there actually is no reason to think the courts in places like Virginia and North Carolina wouldn't do the same sort of thing if given the chance.

    Whether or not such amendments as Virginia's and North Carolina's had, or were intended to have, such dire effects as were suggested by commentators, the mere fact that they were subject in the minds of knowledgeable people to that sort of interpretation should have been reason enough for the public to have been hesitant to vote for them and reason enough for them to be contested in court.

  • 18. FredDorner  |  July 31, 2014 at 4:06 pm

    I would have liked to see the UCC complaint argued but I think they're making the same mistake bigoted bible-thumpers do by confusing the solemnization of legal marriage with a religious wedding. While the statute does refer to clergy, it only refers to them in their role as proxies for the state during the lawful solemnization of a legal marriage for which a license has been granted by the state. So if a minister purports to solemnize a "legal" marriage which hasn't been granted a license, it's a violation of section 51-1, 51-6 and 51-7. It's essentially an act of fraud, but it would be fraud against the couple or the community, not the state per se since no license exists which can be registered with the state.

    51-1 : “A valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry, presently to take each other as husband and wife . . . .”

    51-1.2: “Marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina.”

    51-6: “Solemnization without license unlawful. No minister, officer, or any other person authorized to solemnize a marriage under the laws of this State shall perform a ceremony of marriage between a man and woman, or shall declare them to be husband and wife, until there is delivered to that person a license for the marriage of the said persons, signed by the register of deeds of the county in which the marriage license was issued or by a lawful deputy or assistant.”

    51-7: “Every minister, officer, or any other person authorized to solemnize a marriage under the laws of this State, who marries any couple without a license being first delivered to that person, as required by law, or after the expiration of such license, or who fails to return such license to the register of deeds within 10 days after any marriage celebrated by virtue thereof, with the certificate appended thereto duly filled up and signed, shall forfeit and pay two hundred dollars ($200.00) to any person who sues therefore, and shall also be guilty of a Class 1 misdemeanor.”

  • 19. Rick55845  |  July 31, 2014 at 5:23 pm

    I think the meat of the prohibition is spelled out in section 51.7. "Every minister, … who marries any couple without a license being first delivered to that person … shall forfeit and pay two hundred dollars to any person who sues … and shall also be guilty of a class 1 misdemeanor."

    Clearly, the State believes that a minister or other authorized person is capable of marrying a couple without a license, so they've explicitly forbidden that.

    Interestingly, section 51.6 appears to apply only to heterosexual couples, or at least to couples who wish to be designated "husband and wife". Most same-sex couples that I know or have heard of prefer "spouse and spouse", "husband and husband", or "wife and wife", so I don't believe 51.6 presents any bar to a minister or other person authorized by the state to solemnize marriages between same-sex couples who avoid the "husband and wife" designation. 🙂

  • 20. FredDorner  |  July 31, 2014 at 6:07 pm

    Right, but I think the state would (or should) argue that a religious wedding isn't the same as the solemnization of a marriage, and that it would be more a question of misrepresentation on the part of the minister if he represents to the couple or the congregants that it's a valid marriage. Otherwise it's a blatant violation of the Establishment clause, exactly like the state telling a church who it can baptize.

    There'd be no confusion if priests were prohibited from acting as proxies for the state and everyone had to go to a government office to be married. That's the way France and most of the EU do it, as well as many Catholic countries around the world.

  • 21. RemC_in_Chicago  |  August 1, 2014 at 6:15 am

    My understanding is that the UCC ministers were essentially making the point about the misdemeanor/$200 fee, plus they were flipping the opponents' "religious liberty" argument on its side. The state is infringing upon their religious liberties by denying them the right to function as they see fit. As a member of the UCC, I can vouch for its expansive attitude—it's been blessing commitment ceremonies since 2000 or 2001.

  • 22. JayJonson  |  August 1, 2014 at 7:07 am

    Yes. The UCC lawsuit in effect rebukes the claim by conservative religions that somehow the state allowing gay people to marry infringes on their religious freedom to define marriage. The claim is nonsense, but it has been sold to the believers. The UCC suit announces that they have the right to a contrary religious belief. And if anyone's religious belief is threatened (in this case specifically by the threat of being charged with a misdemeanor), it is theirs. It is hard to tell how seriously their suit will be taken since I doubt that anyone has been charged under that section of the statute, at least for marrying a same-sex couple "under the laws of this State."

    The real value of the suit is educational. It vividly makes the case that some religious denominations endorse same-sex marriage and that the current marriage laws in North Carolina have the effect of placing a state imprimatur on some religious group's rituals while denying that imprimatur to other religious groups.

  • 23. brandall  |  July 31, 2014 at 10:59 am

    Maine Ethics Panel Update (2009 Ban Referendum)

    1) Commissioners voted 4-0 to not investigate a complaint that the National Gay & Lesbian Task Force since the staff determined that group’s fundraising was short of the $5,000 threshold that would have required it to register, and 2) delayed action on conducting a similar investigation of the Human Rights Campaign.

    Complaints against the groups were filed by the National Organization for Marriage after the commission ruled against NOM.

    The commission levied a $50,250 fine against NOM. NOM is expected to appeal the ruling in Maine Superior Court."

    I suggest the Ethics Panel better hurry up and collect their $50K since NOM will be bankrupt no later than June, 2015.

  • 24. Jen_in_MI  |  July 31, 2014 at 12:00 pm

    Cue the sad trombone for Brian, he's going to cry himself to sleep tonight over yet another NOMFAIL. One wonders who is still contributing to such a dismal failure of an organization – but I guess that's exactly the point!

  • 25. davepCA  |  July 31, 2014 at 3:17 pm

    Hey! That's my cue!!

    : )

  • 26. Mike_Baltimore  |  July 31, 2014 at 11:04 am

    Something to remember about the NC AG declining to further defend the NC laws and constitutional amendment on this subject:

    He is a Democrat (in 2012, he ran unopposed in the primary and the general elections) and is expected to run as a Democratic Party candidate for Governor of North Carolina in November 2016.

    How his decision to not further prosecute will affect his campaign plans is unclear, nor is it clear how that decision will affect his future responses to the law suits mentioned above (one of which is against him).

    As to Bostic, it is my impression that the courts believe the Bostic decision affects all states in the Circuit (as do I), but they want the parties to reconfirm that belief.

  • 27. ranjitbahadur0  |  July 31, 2014 at 11:10 am

    Would the ruling still be binding precedent if it gets appealed and stayed (which is almost a certainty) ?
    I understand that in the 9th for example since there is no appeal to SmithKline, the mandate is final and binds all those district courts. But as long as Bostic is under appeal (chance of being reversed) and stayed (so not in effect) would it still compel the 4th circuit courts ?

  • 28. Japrisot  |  July 31, 2014 at 11:15 am

    A stayed federal circuit court opinion does not bind district courts.

  • 29. Mike_Baltimore  |  July 31, 2014 at 11:46 am

    My understanding is that a stayed ruling does not bind, but if appealed and the appeal is not accepted at SCOTUS, then the previous legitimate ruling stands.

    Or if the stay is lifted for some other reason, then it applies Circuit-wide.

    It would be rare for a court to rule one way on a case, then within a year or two, rule differently on an almost exact case (unless a higher court forces such a change in rulings). That is one reason for rulings in Circuit Courts to apply circuit-wide.

    I wouldn't be at all surprised if the courts in NC rule, then stay the ruling until Bostic is appealed to SCOTUS, and if SCOTUS accepts the appeal, to see how SCOTUS rules (and then adjust their ruling, if necessary).

  • 30. Dave_wx  |  July 31, 2014 at 11:55 am

    Cases involving the same question from a three judge panel can only appealed en banc within a circuit. Thus a different panel cannot reverse or overturn a previous case.

  • 31. Mike_Baltimore  |  July 31, 2014 at 1:51 pm

    "Thus a different panel cannot reverse or overturn a previous case."

    But a higher court can, and does, reverse cases.

    And an appeal can be made directly from a three judge panel's decision in a Federal Circuit Court to SCOTUS. In fact, that is the manner in which most appeals get to SCOTUS.

  • 32. brandall  |  July 31, 2014 at 12:00 pm

    While we're waiting…and waiting…for another court decision anywhere…

    NJ: Second Challenge to Gay Conversion Therapy Ban Dismissed

    Here's the ironic part. The plaintiffs wanted strict scrutiny applied. Rational bases was enough to let the judge toss it out.

    Read more:

  • 33. sfbob  |  July 31, 2014 at 1:40 pm

    The link you've provided requires a subscription to read. Doesn't seem to be any means of opting out and going directly to the article.

  • 34. BenG1980  |  July 31, 2014 at 1:53 pm

    Google "Second Challenge to Gay Conversion Therapy Ban Dismissed" and the article should be the top result. You can click on the link and read it that way without having to register.

  • 35. FredDorner  |  July 31, 2014 at 4:12 pm

  • 36. Sagesse  |  July 31, 2014 at 5:15 pm

    Apologies if this has been posted… but on a related topic:

    Nine Leaders Of Ex-Gay Movement: 'Conversion Therapy Harms People' [New Civil Rights Movement]

  • 37. brandall  |  July 31, 2014 at 12:21 pm

    FL: Monroe and Miam-Dade could be combined and, hopefully, skip the Appeals Court.

    Lawyers for both sets of plaintiffs have filed motions seeking the consolidation and the defendant county clerks have not objected.

    I believe AG Bondi has still not stated if she will support jumping directly to the SC. I would think she would try to stay stall any ME decision until after the election.

  • 38. Bruno71  |  July 31, 2014 at 12:38 pm

    Interesting Katie Couric interview with the Notorious RBG. Reading this part has me concerned:

    "So the problem with Roe v. Wade was, it not only declared the Texas law, the most extreme law, unconstitutional, but it made every law in the country, even the most liberal, unconstitutional," Ginsburg said. "And that gave the right-to-life people a single target to move at. And for them, it was a very effective target. It was nine unelected judges making a decision that they argued should be made by the individual state legislatures.

    Of course, her views on the Roe v Wade ruling haven't been a secret, but I note the "nine unelected judges" part, which makes me realize how afraid she is to have the court get flak for a precocious ruling on a social issue. I think she must be hesitant to do a national ME ruling that applies to 31 states at once. On the other hand, she didn't seem to have a problem with letting a lower federal district court decide for California. As long as it's a slow, percolating process, it's OK. But I still have to wonder if they won't try to split the baby again in 2015.

  • 39. brandall  |  July 31, 2014 at 12:58 pm

    What, if any, were the major abortion rights cases prior to Roe v Wade? I can't answer that. But, for ME we have a succession of SCOTUS rulings that build up over time. Granted, it's not 50 years and Romer (1996), Lawrence (2003), etc. are a fast build-up to Windsor. An even stronger difference is that never in the history of U.S. jurisprudence has there been a 29 case streak of concurring decisions. If anything, the "surprise" would be how RBG and others could reverse all of these.

  • 40. Bruno71  |  July 31, 2014 at 1:02 pm

    Yeah that's a compelling streak, but let's not count our chickens before they hatch just yet. We have a Louisiana ruling coming soon that may not be in our favor, and of course there's the 5th Circuit and a very conservative 6th Circuit panel in those respective cases. There may not actually be a winning streak by the time it gets to their plate. But even if there is, I don't know if that'll be enough to allay RGB's concerns of a public backlash.

  • 41. brandall  |  July 31, 2014 at 1:05 pm

    I'll kindly ask again. What, if any, were the major abortion rights cases prior to Roe v Wade?

  • 42. Bruno71  |  July 31, 2014 at 1:08 pm

    And I'll kindly answer that I don't know. I can tell you that almost all states disallowed abortion to some degree or another by the time it went to SCOTUS. That's a clear difference in our favor. However, even if there were no cases prior, I don't know if that will overcome RGB's fears in this respect. It has to do more with how the bench is perceived by the public, and I doubt the public is much aware of our current winning streak in the lower courts.

  • 43. DACiowan  |  July 31, 2014 at 1:20 pm

    Looking at Wiki, there doesn't seem to be the powerful string of lower court cases on the road to Roe v. Wade. As sudden as this movement has been, the pro-choice movement was even quicker: the first state to legalize any sort of abortion (for the mother's health) was Colorado in 1967 — five years before the case was argued. By the time Roe was decided in January of 1973, four states allowed abortion on demand (Hawaii in 1970 being the first), and 16 others in select cases like the mother's health. Bizarrely, the states allowing medical reason abortions were concentrated in the South (and West), while the Northeast and Midwest tended to outright ban the process.

    There was a Supreme Court case in 1971, United States v. Vuitch, upholding DC's medical abortion law, but that was a question of the specific law's wording.

    Also, Jane Roe of the case name (real name Norma McCorvey), besides now being very pro-life, was openly bisexual at the time but now claims to be ex-gay. Huh.

  • 44. Bruno71  |  July 31, 2014 at 1:23 pm

    No question we're in better shape than the case was in 1973. But is it still enough, by 2015? That's the question.

  • 45. Dr. Z  |  August 1, 2014 at 6:41 am

    I think for ME the analogy would have to be turned around. If the SCOTUS ruled against ME, then there would be a focal point and a rallying cry – among the left – that the decision had to be overturned. Does anyone really believe the SCOTUS is going to stop the LGBT civil rights movement with a single ruling?

  • 46. brandall  |  July 31, 2014 at 1:27 pm

    Thanks Bruno. I certainly do understand your point about RGB's statement as a standalone concern she's repeatedly expressed. She's been saying this for several years and we've had previous lengthy comments on EoT in the past.

    She has to have a specific understanding of the history of Roe. After all, 9 unelected judges are making major decisions every year. So, what is it that makes Roe seem unusual to her?

    And I completely agree with you the public has no high level concept of what is happening with ME in the last 6 months. I would venture to say a poll conducted in the states where ME is stayed would show a large % of the pop saying SSM's are getting married in their state right now.

    On a side note to your point about the public. Most of my non-LGBT friends in the '90's had no idea I could not get married. They just assumed we could and that included my parents who raised our family in Hollywood, CA.

  • 47. Bruno71  |  July 31, 2014 at 1:33 pm

    Roe is unusual to her because it created a huge backlash, in her mind at least. I think we can safely infer she fears the same as a result of a national ME ruling. So where is her line drawn? Where is Kennedy's line? Where is Breyer's? We don't know. But it's worth discussing anew as situations arise (i.e. Windsor and 28+ subsequent court rulings in our favor) and new interviews touch on the subject. If this is the same line that RGB has been going by for years, it concerns me that recent events aren't changing its pitch.

    As to your side note, I had no idea that Hollywood was so out of touch with reality! Or did I? LOL.

  • 48. FredDorner  |  July 31, 2014 at 4:23 pm

    I think Ginsburg is simply using a bad analogy. A far better and more direct analogy is to Loving v Virginia where 72% of the public opposed mixed-race marriage when the court ruled in 1967. And in the affected states the opposition was far higher and quite vehement. There's nothing remotely like that today.

  • 49. Bruno71  |  July 31, 2014 at 4:32 pm

    I tend to agree that it's not the best analogy, though I wouldn't say it's totally without merit. In terms of the merits of the case, the underlying issues, certainly ME is far from abortion. But I can also see her hesitancy when it comes to how an issue decided in such a way could possibly create a backlash. That said, there is just no way I could see a ME ruling causing such a backlash the way (at least in theory) the abortion issue did after Roe . There are people who are vehemently anti-equality in every single state, and there are no great revolts happening in states with ME. There's no reason to think that reaction among those folks in Alabama will be worse than the reactions in Massachusetts or Iowa. It's just there's a higher % of them in Alabama than in those states, that's all.

  • 50. Dr. Z  |  August 1, 2014 at 6:37 am

    From what I've read, the SCOTUS didn't intend to issue a sweeping ruling when it granted cert in Roe. There was a different legal issue going on at the time that needed clarification in the courts. However, by the time the hearings had been held this other issue had been rendered moot, and the opinion drafts in Roe had taken on a life of their own within the SCOTUS. The rest was history.

  • 51. ragefirewolf  |  July 31, 2014 at 1:26 pm

    It's an unprecedented winning streak. A circuit split is good news in a way, which will require (in a sense) SCOTUS to rule on it. It's bad in terms of justice delayed. It's tough.

  • 52. ChrysT17  |  July 31, 2014 at 7:24 pm

    I'm not sure that RBG is the only concern, either. I believe Justice Breyer has made a similar public comment about the reputation of the court and "getting ahead of" public opinion. And one of the other liberal justices – Kagan or Sotomayor – asked during oral arguments in March 2013 something to the effect of "why shouldn't we let this percolate?"

    Though it might be unusual or even unprecedented for SCOTUS to overturn as many lower court rulings as we have seen in the last year's winning streak, I imagine it is also unusual if not unprecedented for them to overturn the laws of 31 states – 28 of them constitutional amendments – and that may weigh on the minds of the liberal justices otherwise sympathetic to ME.

    With this publicly-expressed hesitancy on the part of at least 3 of the liberal justices, and other concerns that belong in another thread, I wonder if some people may have become overconfident that ME nationally in 1 or 2 years is a near certainty? I hope, as I overheard one person predict, we're going to be throwing a REALLY big party in June, 2015, but I'm not convinced.

  • 53. Dr. Z  |  August 1, 2014 at 6:48 am

    We've gone beyond percolating; this issue has reached a full rolling boil, and the SCOTUS can't keep the lid on it with these stays for much longer. What's more: they know it. Situations like the marriage windows in Arkansas and Wisconsin, and outright defiance in Colorado, are demonstrating growing impatience.

  • 54. brandall  |  July 31, 2014 at 2:34 pm

    Ginsburg: High court won't 'duck' gay marriage

    Associated Press
    WASHINGTON (AP) – Justice Ruth Bader Ginsburg says the Supreme Court won't duck the issue of same-sex marriage the next time a case comes to the court.

    The 81-year-old Ginsburg said in an interview with The Associated Press on Thursday that she expects a same-sex marriage case to be heard and decided by June 2016, and possibly a year earlier.

    She said attitudes have changed swiftly in favor of the right of same-sex couples to marry, which is now legal in 19 states and the District of Columbia.

    Ginsburg has served on the court since 1993. She was nominated by President Bill Clinton. She said feels she can still do the job well and rebuffed suggestions that she should retire now so President Barack Obama can appoint a like-minded successor.

    NOTE: This article just hit the AP wire and is being picked up by 1,000's of outlets. It is THE ME news story of the day. I believe it is exceedingly rare for any member of the court to comment on future cases.

  • 55. BenG1980  |  July 31, 2014 at 2:47 pm

    It doesn't look like she really commented on the merits of such a case — apart from pointing out the obvious fact that public attitudes have changed quickly — so in that sense I'd say it's not exactly rare. The justices often make the rounds in the summers giving speeches and sometimes granting interviews. I do think this interview, however, is particularly newsworthy due to its context and timing given all the cases moving through the courts.

  • 56. brandall  |  July 31, 2014 at 2:54 pm

    Of course she's not going to comment on any merits. But, I recently watched a one-hour interview with Sotomayor. Despite repeated different approaches by a interviewer who was clearly a fan of her's, she would not comment on anything that had not already been decided by the court.

    I also doubt you will find many instances where a sitting SCOTUS judge goes far enough to predict SCOTUS will hear a specific issue within a date parameter.

  • 57. Bruno71  |  July 31, 2014 at 4:08 pm

    Yeah, that's a very interesting interview, and does seem to acknowledge the recent tide in favor of ME. It suggests, at the very least, that Ginsburg will vote to grant cert on a case this year, since Kitchen is being appealed directly to them, and should be considered properly before them. They could, of course, opt for Bostic and/or Bishop as well.

  • 58. Japrisot  |  July 31, 2014 at 4:19 pm

    And that democrats everywhere have been asking her to step down now to avoid the political catastrophe of moving a SCOTUS nominee through a Republican senate.

  • 59. Zack12  |  July 31, 2014 at 7:45 pm

    Or of her staying on too long like Thurgood Marshall did and getting replaced by someone like Clarence Thomas.
    Just think of how things would be different if he had been able to hang on just one more year.

  • 60. JayJonson  |  August 1, 2014 at 7:20 am

    The problem with her stepping down now is that the Republicans will filibuster any person President Obama nominates to replace her. Better to wait until President Clinton takes office in 2017.

  • 61. debater7474  |  August 1, 2014 at 8:34 am

    Sri Srinivasan could get confirmed, but the problem is he's basically a right winger. He confirmed during the confirmation hearings that he would uphold DC vs Heller, he worked for the Bush administration, and he clerked with Ted Cruz, whom he remains good friends with. At the confirmation hearing, Cruz sung Srinivasan's praises. Srinivasan is a right wing conservadem, and yet Jeffrey Toobin said that he is most likely the next pick for the higher court.

  • 62. brandall  |  July 31, 2014 at 4:52 pm

    Additional Ginsburg Comments in today's NY Times:

    ME – "I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation," Ginsburg said. "If a case is properly before the court, they will take it."'

    Hobby Lobby – "I have no doubt that if the court had been composed of nine women the result would have been different in Hobby Lobby"

    And to earlier EoT comments about stepping down now – ""So who do you think could be nominated now that would get through the Senate that you would rather see on the court than me?"

    Maybe someday she'll come to SF and a bunch of us can take her to dinner at any restaurant she wants to go to.

  • 63. andrewofca  |  July 31, 2014 at 5:03 pm

    and the Opera!

  • 64. debater7474  |  July 31, 2014 at 7:31 pm

    So Ginsburg has essentially made it clear that there will be no allowing the circuit rulings to go into effect: the Supreme Court will take cert when the marriage cases come before it.

  • 65. brandall  |  July 31, 2014 at 7:41 pm

    That is my belief also. The script is already written, they each already know how they will decide and now it is just which case they take. DOMA was Act I, full ME is Act II. They only true variable is "how long is the intermission?"

  • 66. Bruno71  |  July 31, 2014 at 8:14 pm

    If they don't deny cert on every case, the length of time really isn't a variable. They have to take one as it comes to them, unless they do something strange and keep relisting it.

  • 67. Silvershrimp0  |  July 31, 2014 at 1:00 pm

    Perhaps she's just saying that she thinks the court should deny cert on the pending cases until there's a circuit split.

  • 68. Bruno71  |  July 31, 2014 at 1:11 pm

    That's certainly an option, though I don't think she's saying that, explicitly or implicitly, here. Kennedy and Sotomayor likely wanted to deny cert in Hollingsworth , perhaps RGB voted that way too, initially.

  • 69. JayJonson  |  July 31, 2014 at 1:31 pm

    A big difference between the national debates regarding abortion and same-sex marriage is that there is now a growing consensus in favor of same-sex marriage (though the country remains divided regionally and generationally on same-sex marriage). I am not sure that that was the case with regard to abortion when it was decided.

    It may be that SCOTUS will split the baby by ruling that states do not have to perform same-sex marriages themselves but do have to recognize the valid same-sex marriages performed in other jurisdictions.

  • 70. Bruno71  |  July 31, 2014 at 1:39 pm

    To do that, in terms of timing, they'll have to deny cert in Kitchen, Bishop, & Bostic and allow ME in the 4th & 10th Circuits. Then take up the OH or KY or TN case or a combo and make the out of state recognition ruling. It's certainly possible, especially with this slow-walking SCOTUS. Either that or grant cert in one of those full equality cases and basically shoot down our progress in that regard.

  • 71. Bruno71  |  August 1, 2014 at 9:22 am

    Given RGB's latest comments that they will likely resolve this soon, I find the recognition scenario less plausible than before. SCOTUS can't resolve a case where the plaintiffs are asking for in state marriage by telling them to marry elsewhere. And it looks unlikely now they'll deny cert on any such cases.

  • 72. sfbob  |  August 1, 2014 at 9:32 am

    Have to agree with you there. I don't think it makes any sense for the Court to tell someone to go to some other state to marry if they can't marry in their own state and I doubt they'd do such a thing either explicitly or implicitly.

  • 73. RQO  |  July 31, 2014 at 1:59 pm

    That was 7th Circuit Judge Posner's musing in an interview he gave last summer, just after Windsor.

  • 74. Mike_Baltimore  |  July 31, 2014 at 2:10 pm

    I have been coming more and more to that opinion lately. (I don't know if I would call such a decision 'splitting the baby', but I can't think of a better manner to describe it.)

    It's bad news for those who have to travel to get married (such as those in Mississippi, Louisiana, etc.), but the nation as a whole (especially the younger generations) seems to be more and more in favor of ME, and so eventually there might not be a need for any SCOTUS decision.

    I think we'll have to wait for the decision from the 5th, and see what SCOTUS does with any appeal from there. That decision from SCOTUS should provide a major clue as to where SCOTUS and ME in the US are headed.

  • 75. robbyinflorida  |  July 31, 2014 at 3:15 pm

    This is why section 2 of DOMA needs to be addressed.

  • 76. sfbob  |  July 31, 2014 at 3:40 pm

    I could be unduly optimistic here but I suspect that a challenge to Section 2 of DOMA would be a slam-dunk. It would fall on precisely the same basis as Section 3 was struck down. While the "public policy exception" allows states not to recognize marriages contracted in other states, the exception must be based on a reason other than "because that's our 'public policy'." As DOMA has already been found to fail even on a "rational basis with teeth" basis, Section 2 should fall on the same grounds. Unlike age-of-consent, consanguinity (those are the only two areas I can think of where state marriage requirements vary in any non-controversial way), there's no substantive reason for any state to have such a policy. And simple assertion of it being a policy is not a reason that can stand on its own.

  • 77. Rick55845  |  July 31, 2014 at 3:52 pm

    If SCOTUS gives us a full victory (full ME), or even if it only does what King Solomon threatenend, then isn't section 2 of DOMA moot or overruled?

    Anyway, how could anyone challenge section 2 of Doma?

    Section 2. Powers reserved to the states
    No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

    It's an entirely permissive clause. It doesn't require any state to do any specific thing.

  • 78. sfbob  |  July 31, 2014 at 4:33 pm

    In theory it gives states cover for refusing to recognize out-of-state same-sex marriages. But you're right; if SCOTUS were to rule that states must recognize such marriages even if they don't allow them to be performed in states, Section 2 of DOMA is effectively dead.

    As it is, at least one state (Idaho I believe) includes in its marriage equality ban a statement that it is state's "public policy" not to recognize same-sex marriages solemnized in other states. All Section 2 of DOMA ever did was to explicitly allow a state to invoke the public policy exception but given the holdings in Windsor, a state would need to actually justify that policy so Section 2 would be just as useless no matter which way one looks at it.

  • 79. FredDorner  |  July 31, 2014 at 4:29 pm

    I think judge Heyburn in KY put it: "How can the state do what the federal government is prohibited from doing?"

  • 80. Dr. Z  |  August 1, 2014 at 6:53 am

    That would make no sense. SS couples would just cross state lines to get married, and some states would enact a Wisconsin-style law to stop them. The couples would sue, and the issue would soon return to SCOTUS. Nothing would be accomplished.

  • 81. sfbob  |  July 31, 2014 at 1:51 pm

    It does seem to me that while Ginsburg's observation regarding the consequences of Roe vs Wade are apt, her concern about the applicability of those concerns to an expansive ruling on marriage equality are misplaced. Very different rights are assumed and the consequences of marriage equality are quite different from the consequences of unrestricted access to abortion. The fact is that numerous states have been quite successful in restricting access to legal abortion. I'm not at all sure such a thing would be possible when it comes to equal access to marriage; it's one of those things where you either have it or you don't.
    Furthermore while we tend to view our progress on marriage equality as being the result of relatively recent court rulings, that is only partially correct. The reality is that the trajectory towards marriage equality encompasses rulings of long standing some of which have little or nothing to do with LGBT rights. Even before Loving there were other cases where marriage was established as a fundamental right, going all the way back to the late 19th Century. So the process is actually longer and more gradual than Ginsburg seems to fear.

  • 82. Eric  |  July 31, 2014 at 3:16 pm

    What does heterosexual abortion have to do with same-sex marriage equality?

    The two topics are completely unrelated.

  • 83. Bruno71  |  July 31, 2014 at 4:02 pm

    They're both social issues that SCOTUS has been asked to rule on.

  • 84. andrewofca  |  July 31, 2014 at 5:14 pm

    Abortion and Marriage were both found, constitutionally – within the fundamental right to privacy, which generally comes from the 1965 Griswold vs Connecticut ruling. While it wasn't an abortion ruling per se, Griswold was related to reproductive rights. Griswold, Loving, Roe v Wade were all rulings from RBG's earlier, seminal years. I imagine they made a huge impact on her, and she is seeing ME from this perspective.

  • 85. Eric  |  August 1, 2014 at 9:53 am

    SCOTUS was recognizing marriage as a fundamental right about 100-years before Griswold was decided.

  • 86. SeattleRobin  |  July 31, 2014 at 5:21 pm

    They both are issues of individual liberty.

    I'd also like to point out that abortion is not limited to heterosexuals.

  • 87. Eric  |  August 1, 2014 at 9:51 am

    No, but 100% of abortions are the result of heterosexual reproduction.

  • 88. wkrick  |  August 1, 2014 at 11:24 am

    Eh hem… turkey baster, in-vitro, various scenarios involving a lesbian couple and a homosexual "stunt cock".

  • 89. Eric  |  August 1, 2014 at 2:44 pm

    All your examples are of heterosexual reproduction. The uniting of a sperm and egg.

  • 90. SeattleRobin  |  August 1, 2014 at 7:01 pm

    But you said "heterosexual abortions" which clearly implied abortion is specific to heterosexuals, which it isn't. Additionally, even though all human reproduction requires an egg and a sperm, it does not require the participation of any heterosexuals. (Heterosexual reproduction isn't even a term. Reproduction that requires genetic material from two different donors is simply called sexual reproduction.)

  • 91. FredDorner  |  July 31, 2014 at 6:16 pm

    Griswold is actually cited in most of the marriage equality cases, just as it underlies Roe.

  • 92. JayJonson  |  August 1, 2014 at 7:29 am

    Griswold was, also, of course central to Lawrence. It is the source of "privacy rights" and "liberty rights" in making decisions about sex. Of course, the Griswold decision itself was specifically limited to decisions made by married couples. The majority in Bowers thought it laughable that sexual decisions made by homosexual couples might deserve constitutional protection.

  • 93. friskyfawns  |  August 1, 2014 at 5:25 am

    According to this history compiled by Politico magazine, there was no backlash against Roe v Wade until 6 years later when Bob Jones University began whipping up the right wing because their federal funding was being cut for not allowing black students. They figured racism wasn't a savory cause behind which to win their case so they went after women, and in particular, those scary radical feminists instead.

    Apparently most of the religious right at the time thought Roe was a decent compromise.

    "But the abortion myth quickly collapses under historical scrutiny. In fact, it wasn’t until 1979—a full six years after Roe—that evangelical leaders, at the behest of conservative activist Paul Weyrich, seized on abortion not for moral reasons, but as a rallying-cry to deny President Jimmy Carter a second term. Why? Because the anti-abortion crusade was more palatable than the religious right’s real motive: protecting segregated schools. So much for the new abolitionism."

    "Today, evangelicals make up the backbone of the pro-life movement, but it hasn’t always been so. Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.

    When the Roe decision was handed down, W. A. Criswell, the Southern Baptist Convention’s former president and pastor of First Baptist Church in Dallas, Texas—also one of the most famous fundamentalists of the 20th century—was pleased: “I have always felt that it was only after a child was born and had a life separate from its mother that it became an individual person,” he said, “and it has always, therefore, seemed to me that what is best for the mother and for the future should be allowed.”

    Although a few evangelical voices, including Christianity Today magazine, mildly criticized the ruling, the overwhelming response was silence, even approval. Baptists, in particular, applauded the decision as an appropriate articulation of the division between church and state, between personal morality and state regulation of individual behavior. “Religious liberty, human equality and justice are advanced by the Supreme Court abortion decision,” wrote W. Barry Garrett of Baptist Press."

  • 94. Dr. Z  |  August 1, 2014 at 7:04 am

    It took a few years after Roe for the religious right to organize. Recall what else was happening in 1973-1975: Watergate, Ford's pardon of Nixon, endgame in Vietnam, and the OPEC oil embargo. Conservatism was at a nadir. They started organizing for the 1976 elections by backing – wait for it – Jimmy Carter, who openly professed his religion after presidents had been deemphasizing that (think John Kennedy.) It wasn't until 1977 when Carter pushed thru the Panama Canal treaty that conservatives started getting traction, and Anita Bryant showed that the religious right could actually win on something by repealing Miami's gay rights ordinance.

  • 95. SeattleRobin  |  August 1, 2014 at 7:15 pm

    That's fascinating stuff! I had no idea. Though I had been thinking back just a couple days ago when Ginsburg and Roe were being discussed. I was thinking about how I have a memory of when abortion was legalized by SCOTUS, but I don't remember it being a massively hot topic. It was more a combo of an uncomfortable topic combined with a it's about time attitude among many. I figured my lack of awareness was just due to my age (11 at the time), and by the time the drum was beating in the late 70s I was more aware as a teenager. But it sounds like my experience is actually what was going on, and not just age related.

  • 96. FredDorner  |  August 4, 2014 at 8:09 pm

    I think that history recited by Politico is missing a few points, including the 1976 Hyde Amendment and Dem's 1976 national platform which for the first time included support for reproductive choice (apparently in opposition to the GOP's efforts against it). Also, Nixon started lobbying against reproductive choice in the early 1970s shortly after he signed Title X.

  • 97. 77Gelo  |  July 31, 2014 at 12:53 pm

    I'm a little confused about the state of the NC ban and hoping I can get some clarification from the knowledgeable commenters here. I have a few questions about this: 1) If the 4th circuit decision is stayed, does that stay automatically apply to any ruling in NC since it is the same district? 2) If the AG is no longer defending the ban, is there another party with standing that might come in to defend it? 3) If there is no such party with standing and the 4th circuit stay is not binding on NC, doesn't that mean that marriage equality has already arrived in NC since the ban is no longer being defended by the AG? Please forgive me if this sounds like a ridiculous question. I have a really hard time understanding the US Court system and would just like to have a better understanding of the situation.

  • 98. netoschultz  |  July 31, 2014 at 1:17 pm

    There is a law in NC that gives power to the Legislature to hire attorneys to defend NC if they are not satisfied with AG defense

  • 99. Mike_Baltimore  |  July 31, 2014 at 2:18 pm

    Has that NC law been tested in court? In other words, it is on the books, but is it legal?

    For example, does the NC state constitution explicitly state that the AG is the 'defender' of NC laws? If so, then the above mentioned law might not be legal. If not, it could be legal (barring any other provisions of the state constitution and/or court decisions saying it is not).

  • 100. sfbob  |  July 31, 2014 at 2:35 pm

    At the very least it, while such a law might allow the legislature to hire an attorney to defend the law in court it might or might not grant them Article III standing.

    California's Supreme Court had ruled that as far as state law was concerned, the proponents of ballot measures had standing to defend them in court. But that didn't translate in their ability to defend Prop 8 before the US Supreme Court.

  • 101. StraightDave  |  July 31, 2014 at 3:10 pm

    Karcher v May from NJ seems to suggest that elected legislative officers can have Article III standing if authorized by the state.

  • 102. Margo Schulter  |  July 31, 2014 at 1:40 pm

    For Roe v. Wade, my impression is that the relevant SCOTUS precedents tended to concern contraception and related privacy issues, rather than abortion itself.

    Justice Ginsburg’s caution on marriage equality might lean more, as has been commented, toward allowing “percolation”. That could mean letting as many circuits weigh in as possible, and also state courts and executives, as well as any legislative action (including ballot measures) that might arise.

    Denying cert. on the current round of cases and letting ME go into effect on a piecemeal basis for a year or so, then granting cert. to make it official nationwide, might be her preferred strategy. It lets SCOTUS serve as the perceived ratifier of a fait accompli, rather than the “activist” body unilaterally imposing that outcome.

  • 103. Margo Schulter  |  July 31, 2014 at 1:46 pm

    From a structural point of view, all of the state constitutional amendments tend to make it more difficult for shifting public opinion in favor of ME to translate into legislative change. And one could argue that those amendments do have an element of “animus” in the broadest sense: a kind of conditioned reflex where preconceptions about LGBT people result in unreflective rejection of rights claims, as opposed to a truly rational consideration of the public interest.

    From this point of view, the lower federal court (and state court) decisions under the Fourteenth Amendment serve to undo the constraint of these mini-DOMA amendments, in many States bringing about what is already a plurality if not outright majority view in favor of ME. That makes the situation quite different from Roe, but similar to the degree that Justice Ginsburg might prefer to have SCOTUS perceived as following rather than leading or even disregarding public opinion. Letting the lower courts act, and then ratifying what they have already brought about in what will likely be a clear majority of States, seems a good strategy.

  • 104. Margo Schulter  |  July 31, 2014 at 1:55 pm

    Mike_Baltimore, I took the previous discussion to mean that a three-judge circuit panel cannot overrule circuit precedent as set by another three-judge panel, but only an en banc decision (or, of course, SCOTUS as a higher court!).

  • 105. Zack12  |  July 31, 2014 at 2:21 pm

    To me splitting the baby would be the next worst outcome next to us losing.
    The idea anyone thinks forcing couples to drive hundreds of miles in order to get a marriage license as some kind of victory is a complete and utter joke.
    That can cost hundreds of dollars and for many couples, they simply can't or won't be able to do that.

  • 106. StraightDave  |  July 31, 2014 at 3:19 pm

    I view a plausible "splitting the baby" scheme as nationally prohibiting non-recognition laws (following in Windsor's footsteps) while denying cert on the licensing claims, leaving the latter to further percolate at the circuit level for another year. By June 2015 that could potentially cover all but the 5th, 8th and 11th (total of 11 states, max.) I also imagine FL and AR possibly settling their own states internally.

  • 107. Eric  |  July 31, 2014 at 3:20 pm

    I might be able to live with a consistent ruling. If it is ok for one to drive hundreds of miles to engage in a fundamental right, surely it is also ok for one to drive hundreds of miles to engage in superstition protected by the First Amendment.

  • 108. Mike_Baltimore  |  July 31, 2014 at 3:34 pm

    I don't think anyone on EoT is advocating for such a decision (I, for one, don't think it an ideal second choice), but it might be the reality that we face.

    It might be similar to the decisions so far on 1st cousin marriages. Some states allow them, other don't. Those 1st cousin couples wanting to get married who live in states that don't allow such marriages to be performed must travel to another state.

  • 109. hopalongcassidy  |  July 31, 2014 at 5:15 pm

    That's an issue whose claims have always eluded me…the alleged 'dangers' of inbreeding. I see dozens of species of animals and birds every day that are the obvious products of it and they seem to do just fine…they even look alike. If there are risks of disease and/or genetic degradation, they sure are not obvious and have certainly not impeded a sustained population.

  • 110. bayareajohn  |  July 31, 2014 at 5:22 pm

    If facts "elude" you, you can find them in many ways, you need not stay eluded. Google "inbreeding" and become luded. The issues (arguably a bit overblown) of inbreeding are well understood and described in detail in places where facts are kept.

    Every day, LGBT people suffer from such cavalierly stated positions. "I look around and don't see any gay people, so they must be rare and probably evil… I don't know anything about them, but I'm entitled to fight for my bad opinion of them." Willful ignorance cannot justify a position or "observation". Sorry to sound on the attack here, but I'm just struck by how oblivious you are to your skipping any facts on the way to your conclusion about how "dangers" earns the scare quotes. (Remember "marriage"?)

    Any veterinarian can tell you the problems, some fatal, many damaging, that inbreeding dogs and even cats has caused through the years. These are obvious and have certainly impeded the offspring. Breeding organizations have gone as far as to decertify competition in some established breeds in order to reduce the number of severely damaged litters.

  • 111. brandall  |  July 31, 2014 at 6:10 pm

    Luded? At first, I thought this was some type of bizarre intimate behavior. Then I thought it must be a use of eluded that I was not familiar with. But, instead, you are telling Hopalong Cassidy to get high. Really, the Hopalong Cassidy? One of the most famous western movie characters ever?

    Webster's has only one definition for this word. Luded – short for Quaalude, a proprietary name for methaqualone. First Known Use: 1973

  • 112. bayareajohn  |  July 31, 2014 at 6:23 pm

    Of course you are playing along, or luding with me…

    Elude: from Latin eludere, from e- (variant of ex-) 'out, away from' + ludere 'to play'.

    My use of lude is a playful chop of the word Hop used to imply that information is avoiding him instead of the other way around. Without the e-, the Latin root should take on the reverse meaning. I'm playing.

  • 113. brandall  |  July 31, 2014 at 6:14 pm

    How or why did you choose to pick Hopalong Cassidy? I grew up in Hollywood, CA. William Boyd was absolutely brilliant for buying the rights to the movie serials (played by other actors) and then creating subsequent movie serials and a TV series (starring Boyd) and being the first producer/actor to create a merchandising market for a fictional character. He made a bloody fortune on the merchandising. I met him a few times in the '60's when I was a kid.

  • 114. Roulette00  |  July 31, 2014 at 6:21 pm

    Dozens of species of animals are inbred, yes. Take dogs as an example: many purebred show breeds suffer from respiratory problems, infections, hip dysplasia, and various other hallmarks of human tampering with their gene pools. With inbreeding we reinforce a certain kind of look (a breed's brand, if you like) at the expense of the health and longevity of the individual. Simply look at the dogs that are rescued by Hope for Paws, many of whom must be shaved of painful, tangled mats of fur because some silly human decided "fluffiness" was a desirable breed trait. Those dogs are so inbred they literally cannot survive without human assistance. Just because they look cool doesn't mean they're a healthy population.

  • 115. Mike_Baltimore  |  July 31, 2014 at 6:51 pm

    Do a search for hip displasia among dog breeds. It is especially harmful for larger dogs, such as collies, dobermans, St. Bernards, etc.

    The reason for hip displasia in (especially) dogs? Most people are of the belief that it is almost certainly a result of inbreeding.

  • 116. RQO  |  July 31, 2014 at 7:08 pm

    Not so common in collies anymore. No longer a popular breed, it has been bred away from. (No pet demand means no indiscriminate breeding.)

  • 117. Mike_Baltimore  |  August 1, 2014 at 12:11 am

    Except I didn't state that collie's are a popular breed. Nor did I state that all, or many, collies suffer from hip displasia. I stated that hip displasia is especially harmful to large breeds (and collies are considered a large breed dog).

    By the way, in 2013 (the latest year for AKC registrations, purebred collies were the 35th most popularly registered breed, while purebred St. Bernards were the 47th most popularly register breed.

  • 118. JayJonson  |  August 1, 2014 at 7:40 am

    Yes, I don't think any of us wants that decision, but I think it is one that we could live with, and far preferable to a ruling that gives us nothing.

    It would vastly improve the situation of those who live in red states who have been married in other states. It would also soon become a lightening rod by which states and cities are judged for conventions and national sporting events. Soon states like Louisiana, which are very conservative but also dependent on tourism, would feel enormous pressure to permit same-sex marriage, especially when New Orleans loses out on national conventions or another Super Bowl.

    I suspect such a ruling would speed up greatly the adoption of marriage equality in all but a few states.

    It is of course a burden to make people travel out of state to exercise a constitutional right. Perhaps we can find some encouragement in the recent decision in the Fifth Circuit (what a surprise!) saying that Mississippi can not force the closure of its last abortion clinic because to do so would create an impermissible burden in the exercise of a constitutional right.

  • 119. Mike_Baltimore  |  August 1, 2014 at 4:05 pm

    That Fifth Circuit decision totally surprised me, too. A pleasant surprise, but totally unexpected.

  • 120. Zack12  |  August 1, 2014 at 6:03 pm

    Even the 5th circuit wouldn't be able to come up with a ruling that makes closing all abortion clinics in one state okay.

  • 121. KahuBill  |  July 31, 2014 at 4:50 pm

    Given my profession, I hate to say it but the common denominator between Roe v. Wade and opposition to ME is religion. Just look at all the Crosses being waived in front of Womens Clinics and in front of State Capitol Buildings when legislatures are considering ME bills. Rational arguments and good Constitutional legal briefing will not change these people's minds. Let's remember that there are still relatively few states where marriage equality has been the law for a while.

    However in those states where it has been the law for a few years, opposition has disappeared. The sky hasn't fallen and it actually is viewed as a social good. There has never emerged any serious movement (even by the RC Bishops or the NOMbies) to repeal ME in any states where it has existed for a year or two.

    This might be a reason to let the air out of the balloon more slowly either by splitting the baby or circuit by circuit. On the other hand, this history may allay Justice Ginsburg's concern. Unfortunately it has become a partisan political issue much to the discredit of the panderers and fear mongers. Maybe we just have to let them holler knowing they will look foolish in a year of r two.

  • 122. brandall  |  July 31, 2014 at 4:55 pm

    See higher up in the comments section. We've been commenting on this already.

  • 123. debater7474  |  July 31, 2014 at 4:57 pm

    Woops! Sorry

  • 124. brandall  |  July 31, 2014 at 5:02 pm

    No problem. I try very hard not to repeat a news post, but sometimes there's too many articles in one day and way too many threads! And lately, several of us see the same article and have them simultaneously posted in 10 seconds. Smart group here!

  • 125. wkrick  |  August 1, 2014 at 11:37 am

    This site really needs a proper forum. Each new article should do away with the comments section entirely and instead link to a new dedicated thread on the forum. Users would be free to start completely new forum threads on related topics. With a proper forum system, moderators could split off unrelated discussions and start new threads as needed.

  • 126. SeattleRobin  |  August 1, 2014 at 7:25 pm

    The problem is that this site is run on blogging software. Forums require an entirely different software. So the site owners would have to operate and maintain two different and unconnected systems. Anyone here could start up a separate forum specifically designed for discussion and I bet Scottie would be happy to link to it. But I suspect that he has no wish to run one himself. The trouble caused by just a single troll recently explains why.

  • 127. brandall  |  July 31, 2014 at 6:38 pm

    SC: Unlike NC, we can't look to that state to drop any of their current ME litigation. Another state in the STALL column.

    The one exception is the Lieutenant governor.

    “It’s time that we inject some common sense. These laws have dropped all across the country and been deemed unconstitutional. It’s my hope that we would use the millions spent defending (gay marriage ban) lawsuits on roads, bridges, schools and seniors, items that affect the lives of everyday South Carolinians.”

    Read more here:

  • 128. Mike_Baltimore  |  July 31, 2014 at 7:27 pm

    Off topic, but an article that I think all parents of five year olds can sympathize with. I especially liked the final paragraph of the article:

    (Disclosure – I'm 11-1/2 years older than my (half-)sister, and I can distinctly remember how much of a pain her questions at that age could be.)

  • 129. Zack12  |  July 31, 2014 at 7:41 pm

    Push comes to shove, I don't see the four liberals on the court turning back the clock on marriage equality.
    Kennedy is the swing vote once again and I don't see him screwing us over on this.
    Abortion yes, marriage equality no.

  • 130. FredDorner  |  July 31, 2014 at 8:52 pm

    I don't see how anyone can claim that Kennedy is a swing vote on this. Not only has he authored all the gay rights cases since 1996, but he chose to base Windsor on civil rights rather than state's rights. Kennedy is why the courts are rulings unanimously for marriage equality today.

    Also, his comments in the oral arguments about how the children of gay couples are harmed by marriage bans makes it very clear where he's coming from.

  • 131. RnL2008  |  July 31, 2014 at 11:55 pm

    I would tend to agree with your assessment and seeing that we are gaining some ground, it could be time for SCOTUS to make the right ruling………and I believe it will depend on the question that is being asked.

    I believe that we need to know if marriage is truly a fundamental right for all regardless of gender make-up or is it only for those who are of the opposite-sex and can naturally procreate within the marital relationship.

  • 132. cpnlsn88  |  August 1, 2014 at 2:04 am

    I don't know anyone who believes marriage is 'only for those who are of the opposite-sex and can naturally procreate within the marital relationship'. This is because people procreate outside of marriage, people have children outside of what might be termed procreation (e.g. adoption and assisted procreation) and people marry with no intention of procreation. The question is therefore rather may states deny marriage to same sex couples and if so on what grounds?

  • 133. RnL2008  |  August 1, 2014 at 2:17 am

    Oh please, the anti-gay folks have been using this argument for many years now…that's why they use the word like "SAME-SEX" in front of marriage trying to pass it off as some NEW right instead of being an existing right that has been referred as "FUNDAMENTAL" by SCOTUS.

    Either marriage is a FUNDAMENTAL RIGHT for all regardless of gender make-up or it's NOT a true right at all……that's sort of what I was stating in a bit of sarcasm!!!

  • 134. cpnlsn88  |  August 1, 2014 at 5:05 am

    Yes, I get the sarcasm. I was not trying to say that no-one says these things (every brief from the antigay side has little but this) merely that they don't really believe it even if they go on and on about it. To give two examples – no-one believes infertile couples shouldn't marry. It may be that people believe it should be unlawful for people to raise children out of wedlock but it is very rare to hear this (nowadays at any rate) and it wouldn't ever be stated in a Court.

    My view was that this is how our opponents would be putting the question but we shouldn't let them get away with it!

  • 135. Margo Schulter  |  July 31, 2014 at 10:54 pm

    Justice Kennedy’s comments about how children are being harmed by these bans played a memorable role not only in the oral argument, but in his Windsor opinion itself, with many of the post-Windsor decisions quoting his words.

  • 136. F_Young  |  August 1, 2014 at 5:20 am

    Ugandan Court Invalidates Anti-Gay Law

    Too bad this decision could be overturned on appeal, and the law could be passed again anyway.

  • 137. ragefirewolf  |  August 1, 2014 at 5:55 am

    Thank you very much for sharing that!!

  • 138. davepCA  |  August 1, 2014 at 9:45 am

    Although this may only appear to be good news and may not actually result in any positive change in the legal situation there, if nothing else, the reporting about this and any subsequent ruling will help continue to spread awareness about this horrible situation.

  • 139. Bruno71  |  August 1, 2014 at 9:47 am

    It's good news with an asterisk. If upheld by Uganda's SC on the basis of the quorum not being met, the law will be invalidated. The international pressure on the country about this law will have taken a toll as well, making it very difficult to pass again. And if it does pass again, the courts can still take a look at its constitutionality. Of course, the bad news no matter what is that law or no law, homosexuality remains illegal and punishable in Uganda. It just won't be as draconian a punishment scenario.

  • 140. brandall  |  August 1, 2014 at 9:50 am

    Significant to your point. A lot of the media messed up and implied this was decided by Uganda's highest court. It wasn't. It can be appealed. Hopefully, it won't be.

  • 141. Bruno71  |  August 1, 2014 at 9:55 am

    Bahati claims they will appeal. Let's hope he's just blustering, as he's prone to do.

  • 142. F_Young  |  August 1, 2014 at 10:13 am

    Here's a good background article on the bill, its politics and its passage. It says that LGBT activists are bracing for another round of violence following the court’s decision:

    Constitutional Court Strikes Down Uganda’s Anti-Homosexuality Bill

  • 143. F_Young  |  August 2, 2014 at 11:59 am

    Ugandan TV Coverage of the Court Decision Striking Down Anti-Homosexuality Act

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